Judgment No. 4668
Decision
1. There is no need to rule on the complaint insofar as it seeks repayment of the sums wrongly deducted from the complainant’s salary for the period from 1 January 2013 to 31 December 2014.
2. The decision of the Secretary General of Interpol of 11 September 2020 is set aside.
3. Interpol shall pay the complainant compensation calculated as indicated in consideration 16 of the judgment.
4. The Organization shall pay the complainant interest for late payment calculated as indicated in consideration 23.
5. It shall also pay the complainant 3,000 euros in costs.
6. All other claims are dismissed.
Summary
The complainant seeks the restitution of amounts wrongly deducted from his salary in respect of sickness insurance contributions.
Judgment keywords
Keywords
complaint allowed; negligence; organisation's duties; refund; medical insurance
Consideration 4
Extract:
Contrary to what the Organization contends, the Secretary General did in fact take a decision on the complainant’s claim for repayment of the wrongly deducted amounts of ESC and the corresponding interest. Although in his letter of 8 July 2020 the Secretary General insisted that no individual decisions had yet been taken regarding the reimbursement of the ESC wrongly received by URSSAF for periods prior to 2016, he essentially made any future reimbursement of these contributions conditional on the successful conclusion of discussions with France and clearly implied that a refund would only be possible if URSSAF repaid the sums in question. He therefore took a decision adversely affecting the complainant for the purposes of the Tribunal’s case law.
Keywords
decision; injury; refund; host state
Considerations 8-9
Extract:
As Interpol has decided to affiliate its officials stationed in France to the French social security scheme pursuant to Staff Regulation 7.1(1), it has made French national law applicable to the employment relationship between the Organization and the officials concerned as regards their social protection. Given this express reference to the rules of national law, the Tribunal should, in principle, refer to them when ruling on this dispute (see Judgments 4401, consideration 6, 3915, consideration 4, 1451, consideration 23, and 1369, consideration 15). [...]
Having regard to these matters, the Tribunal finds that the question of the extent to which the amounts of ESC paid for the 2009-2012 period may be refunded to the persons who paid them raises a question of interpretation of national law, the scope of which goes well beyond the case of Interpol officials and which can only be decided by the French authorities and courts. It is therefore not for the Tribunal to rule on this issue.
Reference(s)
ILOAT Judgment(s): 1369, 1451, 3915, 4401
Keywords
competence of tribunal; applicable law; domestic law
Considerations 10-11
Extract:
[S]ince reimbursement of the disputed contributions for the 2009-2012 period did not appear clearly impossible in the light of the aforementioned decision of the French Constitutional Council and the above-mentioned provisions of the French Social Security Code, the Tribunal considers that the Organization ought, at the very least, to have expressly requested URSSAF or the French public authorities to effect that reimbursement.
Interpol’s decision to affiliate its officials to the French social security scheme did not in any way release it from its obligations towards them. While it is true that the Organization only deducted the ESC following what it believed, wrongly, to be the applicable French law on the matter, it cannot take refuge behind the fact that it acted only as an intermediary, nor behind its status as an international organisation with no responsibility of its own for the application of that law. In fact, it is pursuant to Staff Regulation 7.1 that the Organization’s officials are usually covered by the compulsory social security schemes in force in the States in which they are stationed, unless the Organization decides otherwise. The officials concerned thus have no choice in this regard and it is therefore unreasonable to suggest that it was their own responsibility to pursue the matter with the French authorities and courts of their own accord, assuming this would be possible.
Keywords
organisation's duties; domestic law; medical insurance
Considerations 15-16
Extract:
[I]nterpol was negligent in several respects: firstly, it did not take the necessary measures to ensure that it kept itself informed of changes to the French Social Security Code, such as that resulting in this case from the partial review of Article L. 131-9 of that Code by the Constitutional Council; secondly, it was unaware of the possibility of obtaining a retroactive refund of the unduly paid contributions provided for by Article L. 243-6 of the same Code; and, thirdly, even when it approached URSSAF and the host State’s authorities in 2019 with a view to obtaining a refund of the amounts deducted from its officials’ salaries in respect of the ESC, it failed to include in its requests the amounts corresponding to the sums deducted for the 2009-2012 period.
Having regard to the legal uncertainty referred to [...], which only the French authorities and courts could resolve, the Tribunal considers that the complainant was denied a valuable opportunity to receive a refund of the amounts of ESC deducted from his salary for the 2009-2012 period owing to Interpol’s negligence. In the circumstances of the case, the injury resulting from this loss of opportunity will be fairly redressed by ordering the Organization to pay the complainant compensation in an amount equivalent to half of the sums deducted from his salary for that period.
Keywords
material injury; negligence; loss of opportunity
Considerations 18, 20-22
Extract:
[I]t should be recalled that interest for late payment simply represents an objective form of compensation for the time that has elapsed since the date on which an amount was due, and the mere fact that there was a delay in the payment of that amount is sufficient to justify the payment of interest, whether or not the debtor was at fault (see Judgments 4093, consideration 8, and 1403, consideration 8). Interpol’s argument that it was not negligent is therefore, in any event, irrelevant.
[...]
[A]s regards the absence of any provision in Interpol’s Staff Regulations or Rules providing for the payment of interest on sums due to the Organization’s officials, the Tribunal recalls that the requirement to pay such interest arises even without such a provision pursuant to the general principles governing the liability of international organisations.
It is appropriate, in line with the Tribunal’s case law, to apply the principle that interest is due ipso jure whenever a principal amount is payable, which is in particular the case where amounts have been wrongly deducted from remuneration that was due to be paid on a fixed date. In this scenario, the starting point for the interest to be paid is the due date for each payment from which an amount was wrongly deducted, that due date being equivalent by itself to service of notice (see, in particular, Judgments 3180, consideration 12, 2782, consideration 6, and 2076, consideration 10).
The complainant requests that the rate of interest payable be set at 10 per cent per annum. However, the Tribunal sees no reason to depart from its usual practice of setting the rate of interest for late payment at 5 per cent.
Reference(s)
ILOAT Judgment(s): 1403, 2076, 2782, 3180, 4093
Keywords
general principle; interest on arrears
Consideration 26
Extract:
Given that the complainant is assisted by a counsel who filed several similar complaints to this one and that the submissions filed in those cases are largely identical, the Tribunal considers it fair to set costs at 3,000 euros.
Keywords
costs
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